Tag: #HummingbirdGate

One of the concerns about Woolworths’ hummingbird scatter cushions is that the retailer used text from a Wikipedia article about hummingbirds as a background to the hummingbird image which attracted most of the attention in the controversy which raged over the weekend.

One of the concerns about Woolworths’ hummingbird scatter cushions is that the retailer used text from a Wikipedia article about hummingbirds as a background to the hummingbird image which attracted most of the attention in the controversy which raged over the weekend. As I pointed out in yesterday’s post –

As Mr Scott pointed out, this leaves the issue of Woolworths’ use of Wikipedia’s text without complying with the terms of the Creative Commons Attribution-ShareAlike 3.0 Unported license which governs Wikipedia content use. This license requires Woolworths to do a few things in order to comply with the license which include –

correctly attributing the Wikipedia article the text was drawn from; and, more significantly,

licensing the Woolworths design “under the same, similar or a compatible license”.

Woolworths spoke to its lawyer and tweeted the following in response to a query from @WikiAfrica:

@wikiafrica We've checked with our lawyer; Wikipedia does not own the content.

Unfortunately the lawyer Woolworths spoke to missed the real issue. This isn’t about Wikipedia owning the Woolworths design. Wikipedia doesn’t even claim ownership of the content on its site, it is all about licensing the content and complying with the relevant Creative Commons license conditions. In this case, we’re talking about the Creative Commons Attribution-ShareAlike 3.0 Unported license.

I wrote about a terrific guide to Creative Commons licenses which Ars Technica published a couple years ago and, instead of repeating what they have already written, take a look at the guide instead. The guide is titled “Creative Commons images and you: a quick guide for image users“. The key license element is the ShareAlike license element which Ars describes as follows:

The “Share Alike” attribute is intended to mimic the function of the GNU Public Licence’s “copyleft” provision, and it stipulates that anyone who creates a derivative work has to license that work under the same Creative Commons license that you used for your original work.

Because this particular clause matters only to those who plan to make new, derivative works based on Creative Commons-licensed content, it’s generally not that important for publishers, advertisers, and most end-users.

What this means is that the Woolies design, as a derivative of the Wikipedia article because it incorporates the text (the license uses the term “Adaptation” which is basically a work based on another work covered by the license), has to be licensed under the same license (I originally read a description of the license as permitting a similar license but the CC version of the overview specifies the same license). To comply with the Creative Commons Attribution-ShareAlike 3.0 Unported license attaching to the Wikipedia source text, Woolworths will have to license its design under the same license. It would also have to attribute the source of the text which is easy enough to do (the Ars guide has a great description of this process too although implementing that practically may be a little challenging just from a logistical perspective).

Of course licensing the Woolies design under a CC license has its own challenges which depend partly on the source license for other design elements (for example, the hummingbird image) and Woolies’ attitude towards releasing its design into the Commons for others to use under the license. Other than that, this is a pretty easy issue to fix.

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p>The big takeaway here is to pay attention to content licensing issues when sourcing material for your products. Sourcing material from Wikipedia is great, just comply with the license requirements. There is a wealth of Creative Commons licensed content out there which is terrific. Using that stuff requires a different mindset to the usual content licensing approach but the opportunities are inspiring.

The allegation that Euodia Roets is a hypocrite for misappropriating RW Scott’s photograph as the basis for the sketch she contends Woolworths, in turn, misappropriated ignores a few important issues. First, was Ms Roets’ sketch actually an infringement of RW Scott’s photograph? Secondly, Woolworths’ failure to comply with the Creative Commons license Wikipedia applies to its content could have profound implications for Woolworths. Lastly, this debate highlights a remarkable degree of ignorance of the law in the digital marketing and creative industries.

The hypocrisy allegation misses the bigger point. It assumes a degree of knowledge on Ms Roets’ part that, by apparently relying on RW Scott’s photograph as the inspiration for her sketch, she was infringing his copyright in his work. As I pointed out in my previous post, to the extent Ms Roets lacked permission to create a derivative of RW Scott’s work, her sketch (which is likely still protected by copyright) probably infringes RW Scott’s copyright. RW Scott’s son, Greg Scott, commented on htxt’s blog post about this story:

My dad, R. W. Scott was the photographer of the original image. He gave me the rights to the digital image. years ago, around 1990, perhaps. I scanned his slide, edited out an overly complex background, and posted it on GregScott.Com and have given rights to use the photo for reference to many artists, provided they they don’t sell a “direct copy”, that is, that they should make creative interpretations of the image. From my perspective, I’m assuming that both works of art are licensed derivative works,and that Woolworth’s has compared two similar images and chosen one work over the other. Clearly two works derived from the same image can be legitimate, and yet have a strong resemblance.

I don’t see any wrongdoing here, except perhaps for making unwarranted accusations without adequate facts. It does bother me that people seem to assume that big business (Woolworths) is in the wrong, when they bought and paid for the image from the artist. If there are license/copyright issues here, I only see a potential concern with the Wiki text.

This would seem to address the allegation that Ms Roets’ infringed RW Scott’s copyright by creating her derivative work, namely her sketch, and undermines the allegation that Ms Roets is a hypocrite.

The Wikipedia License Issue

As Mr Scott pointed out, this leaves the issue of Woolworths’ use of Wikipedia’s text without complying with the terms of the Creative Commons Attribution-ShareAlike 3.0 Unported license which governs Wikipedia content use. This license requires Woolworths to do a few things in order to comply with the license which include –

correctly attributing the Wikipedia article the text was drawn from; and, more significantly,

licensing the Woolworths design "under the same, similar or a compatible license”.

This would be a pretty interesting development because it would take Woolworths’ commercial design and release it into the Commons for re-use in ways I am sure Woolworths did not anticipate. It will be interesting to see whether this product remains on the shelf or is withdrawn to guard against this occurring and to remedy Woolworths’ failure to comply with the license terms.

Ignorance

As I mentioned above, the hypocrisy allegation implies knowledge of wrongdoing on your part while complaining about being wronged. I believe a more appropriate term may be “ignorance”[1] which is remarkably common and which has emerged fairly strongly in commentary about the story. The underlying issue here is that most people are ignorant of the legal risks they face, particularly creatives, and what the law actually says. In fairness, the law is complex and evolving. That said, there is a lot of poor quality information being disseminated as authoritative and is being relied upon to make bad decisions about content and a range of other issues.

I’ve noticed a high degree of ignorance of basic legal risks at larger agencies and smaller creative studios alike. I took a look at about half a dozen large and medium-sized agencies and only one had a set of terms and conditions and a privacy policy framework. The rest have a simple and redundant copyright notice with no further provisions dealing with data protection, content licensing, liability or a range of other themes a decent legal framework is designed to address. This is likely due more to ignorance of the risks these agencies face and what is required to reduce the likelihood of those risks manifesting than a conscious decision to leave the businesses exposed to unnecessary risk.

Given that larger agencies and studios leave themselves exposed to these risks, it is not surprising that small agencies and freelancers are similarly ignorant of the risks they face, especially considering their budgetary constraints which tend to focus their attention on growing their businesses rather than delving into important, though expensive, legal frameworks.

As the saying goes, ignorance of the law is no defence although, in practice, not having many instances of agencies and design studios being sued for rights infringements which could be avoided with adequate legal frameworks leads the industry to complacency. Essentially, agency management doesn’t see the value in appropriate legal frameworks because none of the other agencies have been sued yet. Call it an ostrich strategy or a diabetic strategy, it is troubling and it is going to lead an unfortunate agency to disaster one day.

Returning to this story, perhaps Ms Roets’ critics should consider how prevalent ignorance of the law is in this industry and how many of them have taken the time to acquaint themselves with the facts and accurate representations of the law which governs their activities? It is practically an epidemic.

I haven’t communicated with Ms Roets and don’t have any specific insight into her awareness of the copyright issues at all. ↩

I thought I’d explore some of the legal themes that have emerged from this #HummingbirdGate story even though the story has since developed further and doesn’t seem to be quite what everyone assumed it was in the first place. Two major legal themes are copyright infringement and unlawful competition.

This last weekend has been an interesting one. The Twitter community seems to be convinced that Euodia Roets was ripped off by an unscrupulous Woolworths despite numerous statements and interviews by Woolworths representatives which have denied this and have pointed to a process which was concluded months before entering into discussions with her and which led to the product range Ms Roets contended was derived from her ideas.

What We Have Learned So Far

More information about this controversy has emerged in the last few days. Here are some of the things we have learned:

Woolworths representatives met with Ms Roets in early 2013 and even though Ms Roets gave Woolworths’ representative a sample with her hummingbird image, it probably would not have influenced Woolworths’ production process;

I thought I’d explore some of the legal themes even though the story has since developed further and doesn’t seem to be quite what everyone assumed it was in the first place. The recording below is a summary of the controversy and an outline of what I see as two major legal themes: copyright infringement and unlawful competition.

Before you read further, you should also listen to Jon Robbie’s interview with Woolworths’ CEO this morning:

Copyright Infringement

Many commentators have highlighted the copyright aspect of the controversy. Ms Roets highlights this in her blog post when she compares her drawing and the scatter cushion she came across in Woolworths (I included both images in my previous post). At some point someone pointed out that Ms Roets’ design looks remarkably like a photograph taken by RW Scott in the late 1990s and they are remarkably similar. This is RW Scott’s image titled “Female Ruby Throated Hummingbird”:

It is a beautiful image, as is Ms Roets’ version. If Ms Roets based her image on RW Scott’s image, her image would likely be classified as a derivative work. Assuming Ms Roets’ image is the result of sufficiently creative work on her part, it could also benefit from copyright protection despite the risk of her derivative work also infringing RW Scott’s work. Whether Ms Roets’ hummingbird infringed RW Scott’s copyright would depend on whether she had permission to use it as the basis for her work (assuming she used his work as the inspiration for hers). If she didn’t have permission (bearing in mind she was selling her hummingbird image, she probably can’t take advantage of exemptions to copyright infringement to escape an infringement claim), whoever owns the rights in RW Scott’s work could probably insist that she stop selling hers. Flowing from this, if Ms Roets copied RW Scott’s work without permission and if Woolworths copied her work without ensuring it had permission, then both Ms Roets’ and Woolworths’ works would infringe RW Scott’s. Again, making a number of assumptions here.

Interestingly, Woolworths said, in its statement, that it commissioned its version of the hummingbird from an artist in Durban in 2012. If that artist derived his or her work from RW Scott’s photograph and did so without permission, that would place Woolworths in a difficult position[1].

Unlawful Competition

Much of the commentary conflated copyright infringement with what people seemed most upset with: an unlawful competition angle. If Woolworths stole Ms Roets’ idea, that would probably fall under a class of unlawful competition referred to as a misappropriation of a competitor’s performance. In this case that could be the case if Woolworths used Ms Roets’ idea for a cushion bearing her hummingbird design. Given that she was selling her cushion and Woolworths intended selling its version, she would clearly be a competitor (even if not a particularly threatening one) and if Woolworths hadn’t come up with its own idea independently, using her idea to subsequently produce its own range could be a form of unlawful competition.

For this to apply, Woolworths would essentially have had to have copied the product of Ms Roets’ efforts without much additional effort of its own. For various reasons this doesn’t seem to have occurred but it is certainly an interesting, if hypothetical, aspect of this controversy.

Important Take-away

Something Woolworths’ representatives pointed to which is crucial (and will be increasingly important as more collaborative business models evolve) was how it documented every step of its production process and can point to specific dates and phases of its process of sourcing, developing and ultimately taking the idea to production. This sort of pedantic and legally motivated process isn’t very exciting and can slow a creative process down but it is in times like these that you would be very happy you took your lawyer’s advice to so this. I suspect the member of Woolworths’ legal team who insisted on this documentation process is the object of much gratitude and appreciation right now.

This is why it is essential to include warranties and indemnities about copyright ownership in contracts with external providers. Those sorts of clauses are basically guarantees by the providers that they have sufficient rights to pass along to their client and will take responsibility if the client is later sued for copyright infringement. ↩